A Blog of Members of the Administrative Law and Regulatory Practice Section of the American Bar Association

Monday, February 24, 2014

Former Section Chair Ron Levin Testifies Before House Committee

by Lynn White

On February 11,
2014, the House Committee on the Judiciary, Subcommittee on Regulatory Reform,
Commercial and Antitrust Law held a hearing on the Searching for and Cutting
Regulations that are Unnecessarily Burdensome Act of 2014 (SCRUB Act).
The bill would establish a Retrospective Regulatory Review Commission
(Commission) that would have broad authority to force the repeal or modification
of agency rules. Former Section Chair Ronald Levin, the William R.
Orthwein Distinguished Professor of Law at Washington University School of Law,
testified on the bill.

The primary purpose
of the Commission would be to review regulations and determine whether they
should be repealed or amended to reduce regulatory burdens. The bill
would establish a “cut-go” process that would require agencies to offset the
cost of any new regulations by repealing or amending regulations identified by
the Commission. The Office of Management and Budget, Office of
Information and Regulatory Affairs would also be required to review and certify
the accuracy of agencies’ estimates of the costs of new rules.House Judiciary Chairman Bob Goodlatte (R-VA)
stated that “American taxpayers who are carrying the burden of federal
regulations deserve better, and the SCRUB Act will cut unnecessary, costly
federal regulations, which result in more jobs, better wage opportunities for
workers and a more competitive America.”

Professor Levin
expressed a number of concerns regarding the SCRUB Act. Most notably, he
said that it would violate the Appointments Clause of the Constitution, because
most of the Commission's members would be appointed by legislative leaders. Under long
settled case law, he noted, such appointees cannot exercise significant
authority under U.S. laws. Professor Levin further contended that “the
provisions defining the Commission’s powers would pose major risks of arbitrary
decisionmaking. Essentially, the Commission would have authority to order
elimination or amendment of any agency rule that it considers unnecessarily
burdensome, and no external body could provide a check on its decisions.
Under some circumstances a minority of the Commission could wield the same
powers.”

Professor Levin also
questioned the bill’s approach to retrospective review of agency rules.
The bill would require agencies to include a plan for retrospective regulatory
review in the issuance of any new rule. Professor Levin called this
requirement “enormously overbroad.” He recommended that the subcommittee
wait until the Administrative Conference publishes an upcoming study on
retrospective review before taking action on this issue.